The law of sedition, encapsulated in Section 124A of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) criminalizes any act which excites or attempts to excite disaffection towards the government. Explanations 2 and 3 provided under this provision indicate what actions do not constitute seditious intent and would not attract penalty under this provision. While the scope of this provision was narrowed down by the Supreme Court in 1962, with incitement of violence being made a necessary condition to be charged under this law; the law is still misused by State Mechanisms. This misuse is guided by vested interests, and without being checked, shall pose a grave threat to the democracy of India.
This article gives an overview of how the State Mechanisms in India are using this law to create fear and quell dissent, and provides an analysis of specific instances of the same. It talks about the overlooking of the exceptions to the concerned penal provision and draws a comparison between how the application of the law in the past and the present have the same motives. Finally, certain novel changes even beyond the sphere of legislative reform are proposed, which must be brought forth to resolve the problem of misuse of the law.
Fear-Mongering Tactics Employed in Recent Times
With tolerance for dissent being at an all-time low, the misuse of the sedition law by State Mechanisms is on a rise of at least 28% per year since 2015. These appalling numbers give us a scathing reality check of how our freedom of speech and expression and right to dissent are being restricted increasingly over the years. In the recent past sedition charges have been filed against people protesting peacefully, creating a toolkit for a peaceful protest, not standing up for the national anthem in a cinema, liking a Facebook post, or even praising India’s rival country Pakistan. Prominent instances of such misuse in the recent past may highlight how this law is being abused to silence and muffle any dissent that may come the way of the government.
In an apparent disregard for due diligence and the letter of the law, a sedition charge was filed by the police in 2019 against some of the most prominent Indian artists, writers and filmmakers. Their ‘crime’ was simply signing an open letter demanding the Prime Minister take adequate action to stop mob lynching against minority communities. Having no legal backing, this case was closed soon thereafter. This simply demonstrates and highlights that the agenda behind the filing of this case was nothing but silencing the voices of dissent, instilling fear and creating chaos.
Multiple facets of the country were brought together during the protests against the government-driven Citizenship Amendment Act (CAA) and the National Register of Citizens. Invocation of sedition charges against those protesting crossed 194 cases in 2019, exceeding the total cases filed in the three years prior. For instance, the headmistress of a school and the mother of a student were also charged for sedition after staging a play that disagreed with the CAA. The school management, along with the CEO of the group running the school, was also charged under this draconian law. Additionally, not all of the FIRs book named individuals but multiple are booked against unnamed persons. This forms a tactic by the police to implicate individuals at a later date by putting their names on backdated FIRs.
This unjust censorship has seen no decline in the past year. Slapped with a sedition case for distributing a toolkit in support of the Farmers’ Protests, Disha Ravi, a twenty-one-year-old climate activist was the next target for the law to be misused to silence dissent against a government policy. Following an established pattern, this charge too did not have a legal rationale and led even the Additional Sessions Judge to note that there was not even an iota of evidence of damning criminal action to be found. Staying true to history, the arrest in this instance was made without conclusively establishing relevant anticipations of fomented violence.
These charges, more often than not, have no substance and no purpose other than simply creating fear of disseminating anything but praise for the ruling government and its actions. With the courts often finding no evidence against the accused, it is apparent that these cases have low conviction rates but high deterrence for dissent, fulfilling their true purpose.
Intent Behind the Concept of the Sedition Law in India
Once the instances of fear-mongering through misuse of sedition charges have been analysed, one must gain a nuanced perspective of sedition law through the Indian lens. The United Kingdom, under whose helm India’s sedition law was framed, has decriminalised sedition in their own country over a decade ago. Although the IPC was enacted in 1860, the offence of sedition was excluded by our European lawmakers and only incorporated in 1870 to stifle the voices of dissent against the British Raj. Subsequently, it was used in the arrest of freedom fighters including Bal Gangadhar Tilak, Lala Lajpat Rai and Mahatma Gandhi. Retrospectively, it is evident that the law was intended for mala fide purposes, and the semblance with the manner of its usage today is unsettling.
The acceptance of Section 124A in independent India was confirmed by the Apex Court in Kedar Nath Singh v. State of Bihar upon the rationale that any subversion of the stability of the State by way of seditious expressions would put the State’s existence in jeopardy. Providing a silver lining, the case narrowed the scope of this provision to exclude acts from being termed as an offence under this provision unless they created disorder or had an insidious tendency to do so. In the present context of liberal democracy, the rights granted to the people presuppose their protection by governmental authorities; primary among these being the right to dissent. The blurring of the line between sedition and dissent is a deeply problematic issue which, by restricting individual liberty, is proving to be detrimental to the larger interests of democracy. Without state mechanisms working towards positively protecting citizen’s rights, blatant violations shall continue to ensue.
Reframing this Law for Today’s World
It has been established herein that Section 124A of the IPC is being misused to curb dissent and restrict free speech. An ideal solution would perhaps be legislative reform limiting and streamlining the scope of the sedition law since it is open to constitutional scrutiny. However, bringing this solution to fruition seems unlikely, given that those with the prerogative to make a change are also the ones benefiting from its misapplication. Thereby, the practical solutions proposed are:
- That Explanations 2 and 3 must hold greater significance in the standard for the burden of proof for an offence to amount to sedition. These establish that actions expressing disapprobation of Government or administrative measures without exciting or attempting to excite hatred, do not constitute an offence for merely seeking alteration through lawful means. These explanations have largely been overlooked owing to the fear-mongering tactics employed thus far.
- It is essential that the State be required to prove prima facie that the actions undertaken by an accused can reasonably be said to hold the intention of invoking disaffection against the government for mala fide purposes.
- It must necessarily be proven by the prosecution that any hatred or contempt incited or expressed by those other than the accused bear the direct nexus with the act for which the sedition charge has been invoked.
- In clear cases of sedition charges being initiated as a means to curb dissent without just cause, a penalty must be imposed on the government for charges initiated maliciously.
These suggestions hold applicability in a manner wherein the requisite changes don’t depend on the whims of an unwilling government, while also increasing leadership accountability by way of a stricter benchmark for proving an allegation of sedition.
Ironically, the law of sedition, which found its inception from the British Government curbing dissent stemming from Indian nationalism, has now come full circle to the reigning forces within India using this law to fulfil the same archaic objectives.
Unjust charges such as those against Disha Ravi are not a first, and will not be a last. This law threatens and remains in place at the expense of the citizens’ right to freedom of speech and expression and right to dissent. The abuse of the letter of the law allows state mechanisms to silence any political dissent; lessening the accountability owed by the government owes to its citizens.
Frivolous charges of sedition have now become the norm rather than the exception. Every criticism, every protest, every voice raised against the working of any aspect of the government comes with the looming fear of being charged with sedition. There are rare instances of criticism against state mechanisms where a torchbearer of such a movement has not been marred with a sedition charge. The burden of righting this wrong now rests upon the solutions that have been recommended, which shall thwart the misuse of the sedition law to protect the democracy in India.
About the Authors, Mahek Shivnani [2019-24] & Aashna Mansata [2019-24] are pursuing B.A.LL.B(Hons) from Symbiosis Law School, Pune.